Sunday, August 30, 2015

Defamation

In Canada we have a constitutionally protection freedom to
say whatever we want.

The Constitution
says “Everyone has the following fundamental freedoms … (b) freedom of thought, belief, opinion and
expression, including freedom of the press and other media of communication”.

But that freedom of expression is not without limits. Some things are forbidden. So, for example, child pornography or hate
speech is criminal even if there is a component of free expression involved.

Another limit on free speech is defamation.

You cannot go around telling lies about other people that
hurt their reputation. A more formal
legal definition says that defamation is speaking or printing or communicating “words
tending to lower the plaintiff in the estimation of right-thinking members of
society generally”.

Defamation is sometimes a very easy trap to fall into. If you hear some nasty gossip about someone,
say a local school teacher or Minister, it’s very tempting to repeat the gossip
on Facebook. But doing so is a very bad
idea and can lead you into a lawsuit for significant cost and aggravation.

There are two types of defamation. Oral defamation is slander and written defamation
is libel. In both cases there is no
defamation unless the wrongful words are passed on to somebody other than the
person defamed. So, if you call me a
thief to my face and no one else hears what you said, that may be very hurtful
but it’s not slander. But if you come
into a room full of people and say “James Morton is a thief” that is
slanderous. The idea is that I know I am
not a thief and if no one else heard the statement there is no harm done to
me. But if the defamatory comments are “published”,
that is the technical word for being passed on to others, there is real harm
caused.

Opinion can be defamatory if the opinion is such as to hurt
someone’s reputation. Courts look at whether
the statement supposed to be opinion is asserting a statement of verifiable
fact; if it does then the “opinion” can be defamatory. So saying “In my opinion
James Morton is a thief” doesn’t get you off the hook for defamation.

There are some defences to defamation.

First, truth is a defence. If you say “James Morton is a thief” even if you say it to cause me harm you have an
absolute defence if you can prove I am, in fact, a thief. But as a defence truth is dangerous – if you
claim truth and fail you have just increased the damages against you
enormously.

Second, anything said in Court is immune from a claim for defamation
– you may be held liable for giving false evidence but if someone in Court swears
an oath and says “James Morton is a thief” I cannot sue them for slander. Similarly anything said in the legislature is
immune from suit.

Third, if you, in good faith, tell someone something because
you think they need to know it you may have a defence. That last one can be a bit dicey but its
available for people, say, giving poor employment references.

Finally, if the defamation is in a newspaper or the media
generally you have to give days’ notice notice of your intention to sue soon after learning of the defamation and you have a short period to sue after learning of learning of the defamation.